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TMI Blog2021 (12) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... (for short "the CRPC"), sentencing her to suffer simple imprisonment for six (06) months and directing her to pay to the complainant Rs. 1,90,00,000/- as compensation under Section 357(3) of the CRPC within one (01) month from the date of the judgment and order; in default, the accused was to undergo a further term of simple imprisonment for one (01) year. 2. The accused-respondent preferred an appeal against the said order of the magistrate. Ultimately, vide judgement and order dated May 18, 2017, the Additional District and Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Calcutta set aside the order of conviction dated June 29, 2016 and acquitted the accused-respondent. 3. The present appeal has been preferred against the said judgment of acquittal. 4. The four appeals are between the same parties and arise from similar orders as above, passed in respect of different cheques. C.R.A. No.424 of 2017 arises in respect of cheque no.713384 dated November 24, 2008 for an amount of Rs. 1,75,00,000/- drawn on the Axis Bank Limited, Burrabazar Branch, Kolkata. C.R.A. No.425 of 2017 arises from cheque no.713382 dated November 17, 2008, C.R.A. No.426 of 2017 with cheque no.713378 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the presumption as stipulated in Section 139 of the N.I. Act, which is a presumption of law, as distinguished from a presumption of facts. Provided the facts required to form the basis of a presumption of law exist, the court does not have discretion but to draw the statutory conclusion. The accused thereafter is required to set up a defence and adduce evidence in support thereof for the court to believe the defence case, considering its existence to be reasonably probable on the standard of reasonability of a "prudent man". 11. Learned counsel for the appellant places reliance on the judgment of Uttam Ram Vs. Devindar Singh Hudan, reported at (2019) 10 SCC 287, that of Kishan Rao Vs. Shankargouda, reported at (2018) 8 SCC 165 and Shree Daneshwari Traders Vs. Sanjay Jain, reported at (2019) 16 SCC 83 in support of the above argument. 12. Learned counsel for the appellant then seeks to demolish the defence raised by the accused-respondent, arguing that the same was not a probable one. As such, it is contended, the accused failed to rebut the presumption which rose under Section 139 of the N.I. Act. 13. On such score, learned counsel for the appellant submits that the accused stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of the accused, as reflected in the balance sheet of the complainant. Moreover, Exhibits 10 and G (bank statements of the accused) confirm the receipt of the financial assistance by the accused. 18. The accused, it is argued, deliberately did not produce her balance sheet for the relevant period, which would have fortified the case of the complainant, although the receipt of money by the accused is already accepted and is on record. This should give rise to an adverse inference against the accused. 19. It is next argued on behalf of the appellant that the CBI seized on April 4, 2009 from the office of the husband of the accused at 136, Cotton Street, Kolkata, the cheque book which initially contained the cheque leaves from Nos. 713317 to 713388, but was bereft of the said cheque leaves which had been issued in the manner as set out in Exhibits 10 and G, which are the bank statements of the accused and as indicated in the evidence of the accused when the cheque book was seized. 20. It is argued that several cheques from the series, to which the cheque book-in-question pertained, were issued, as per reflection in the bank statements of the accused and two cheques, bearing nos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nant firm had come to her account, but for a different cause. 28. The accused also admitted in her evidence that she had not received any remuneration/commission from the complainant for such speculation in the stock market by using her name in the bank account. Such admissions, coupled with the conspicuous silence of the accused even after deriving knowledge of the subject cheques having been presented for encashment and even upon receipt of the demand notice issued by the complainant's advocate, tantamount to an admission of the accused regarding the receipt of such money. The accused failed to corroborate her alternative case of a different cause for the receipt of money, thereby failing to discharge the onus of proving such case, which lay upon her. 29. Cheque no.713386, to the tune of Rs. 1,00,00,000/-, which was seized by the CBI as Entry No. 15 of the Seizure List (Exhibit C) was drawn in favour of the complainant, though the same had not been made over to the complainant. Thus, it is contended, the accused was liable to pay such sum to the complainant, which liability could not have arisen on account of profit and/or loss during the course of speculation in the future and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nth of November, 2008. 35. Learned counsel next contends that, for the accused to raise a probable defence, the evidence on behalf of the complainant can be relied upon. In view of the provision of Section 118 of the N.I. Act, the date of cheque is assumed to be the date of the issuance of the cheque, if not mentioned otherwise, that is, in the month of November, 2008. However, the same was presented for encashment only in the month of May, 2009, that is, after a delay of about 5 months and 20 days, just before the validity of the cheque was about to expire, that too after the raid of the CBI on April 4, 2009, when the cheques were supposed to be in the custody of the CBI as per their own seizure list. No reason therefor was cited in the complaint. 36. The respondent no.1 further argues that the complainant has miserably failed to prove that it is the legal 'holder' of the subject cheque and has 'received' the cheque. None of the partners of the firm were produced by the prosecution as witness to throw light on the aspect of issuance of cheque, particularly when only Ramesh Gupta, one of the partners, has made ambiguous and absurd statements. It is argued that, as per the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposition, learned counsel relied on John K. John Vs. Tom Varghese [(2007) 12 SCC 714], K. Prakashan Vs. P.K. Surenderan [(2008) 1 SCC 258], M.S. Narayan Menon Vs. State of Kerala (supra) and Basalingappa Vs. Mudibasappa [(2019) 5 SCC 418]. 45. Learned counsel submits that there was no legal agreement executed by the complainant in respect of the alleged loan. The complainant failed to produce any written document of loan confirmation or loan agreement to substantiate his claim of advancing financial assistance of such a huge amount. Reliance, in such regard, is placed on the following judgments: I) Krishna Janardhan Bhat Vs. Dattatraya G. Hegde [AIR (2008) 4 SC 1325]; II) John K. John Vs. Tom Varghese (supra); III) Rev. Mother Marykutty Vs. Reni C. Kottaram [(2013) 1 SCC 327]; IV) Basalingappa Vs. Mudibasappa (supra). 46. Learned counsel further submits that the issue of legal recovery of debt is not a matter of presumption under Section 139 of the N.I. Act, which merely raises presumption in favour of the holder of the cheque that the same has been issued for discharge of any debt or other liabilities. 47. Learned counsel for the respondent no.1 next submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absurd, since the Seizure List mentions the cheques which had been seized as "signed by Kavita Saraff". There cannot arise any question of her signature appearing in the 'counterfoil' of the cheques. 54. Reliance of the complainant on some other cheques passed in the Seizure List need not necessarily mean issuance of the impugned cheques, it is argued. The Seizure List was not disproved and was prepared by an independent investigating agency. The case of the complainant was, thus, not proved beyond reasonable doubt. 55. The police itself had seized the impugned cheques from the office of the husband of the accused, so any misuse of the cheques would be detrimental to the person himself who manipulates with the instrument and no further complaint was required. Further, the suggestion had been put forward to PW1 (Ramesh Gupta) during his cross-examination that the impugned cheques had been illegally procured by the complainant Firm after the CBI raid. 56. Learned counsel for respondent no.1 submits that no reply to the demand notice was given as, at that time, the respondent no.1 was pregnant and had delivered a baby after a week on May 27, 2009. That apart, the CBI investigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. Moreover, it is argued, the onus on an accused is not as heavy as that on the prosecution, which may be compared with the defendant in a civil proceeding, as held in M. S. Narayan Menon (supra). 62. The submissions made in C.R.A. No.424 of 2017 are adopted in connection with the other appeals as well, apart from certain factual distinctions as indicated above. 63. For a proper appreciation of the legal backdrop against which the present case is set, the cumulative scope of Sections 138 and 139 of the N.I. Act come to the forefront. The said Sections are set out below: 138. Dishonour of cheque for insufficiency, etc., of funds in the account.-Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeding on such premise, if we explore the standard of proof required for the purpose of Sections 138 and 139, Uttam Ram (supra), which was cited by the appellant itself, clearly laid down the proposition that, to disprove the presumption raised under Section 139 of the N.I. Act, the accused should bring on record such facts and circumstances, upon consideration of which the court may either believe that the consideration and debt did not exist or their nonexistence was so probable that a prudent man would, under the circumstances of the case, act upon the plea that they did not exist. It was clearly held that the accused, apart from adducing direct evidence to prove non-existence of the contract or the debt or liability, may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may shift again on to the complainant. 69. In Rangappa Vs. Shi Mohan, reported at (2010) 11 SCC 441, also cited by the appellant, it was further elaborated that the test of proportionality should guide the construction and interpretation of reverse onus clauses and the defendant-accused cannot be expected to discharge an unduly high standard of proof. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sence of signatures thereon, which indicates that the cheque book, though recovered, did not contain all the leaves which were originally contained therein, at the relevant juncture. If the defence case is to be accepted, the incriminating cheques were in the custody of the CBI at the relevant juncture, contained in the seized cheque book, thereby obviating the possibility of such cheques having been issued by the accused at the relevant juncture. On the other hand, the prosecution case is that the independent seizure of other cheques from the same cheque book, details of which were separately given in several items of the Seizure List, indicates that the CBI merely seized the empty, or partially empty, cheque book which might not have contained the leaves of the incriminating cheques, thereby lending credence to the possibility of the accused having issued the dishonoured cheques. Equal weight can very well be attached to either of such theories for the purpose of preponderance of probabilities. 75. Although Section 114 of the Indian Evidence Act, clothes an official act with the presumption of being duly done, upon subsequent adduction of evidence, in particular the Seizure List ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n other irregularities visit the prosecution case as well. As rightly argued by the respondent no.1, the forlorn picture of the balance-sheet and account statements would reflect a sorry state of affairs for the finances of the accused. Hence, the accused, within the prudence of a normal person, could not have undertaken such illegal transactions, as alleged, gratis for the complainant, without any consideration whatsoever. 83. Hence, the very premise of the presumption raised by Section 139 in the present case is demolished sufficiently by applying the standard of preponderance of probability. 84. That apart, it is well-settled that, merely because a different view is possible on the facts of the case, the Appellate Court shall not set aside or reverse the findings and/or decision of the Trial Court. 85. Upon a perusal of the judgment and order impugned in the appeal, it is evident that the Trial Judge took sufficient pains to discuss all the relevant facets of the matter and the governing law and, upon comprehensive consideration of the materials-on-record and the law applicable, arrived at the findings and the final decision assailed in the present appeal. Merely because of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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